2013 QCCQ 968, 2013 QCCQ 968

Fraser c. Talpis 2013 QCCQ 968 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-132108-129 DATE: February 1 st , 2013 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.Q.C. ______________________________________________________________________ Sandra L. FRASER Plaintiff v.

Jeffrey TALPIS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] By motion to dismiss, Defendant requests that the action instituted against him by Plaintiff be dismissed. [ 2 ] More particularly, in support of his motion to dismiss, Defendant invokes article 165(1) of the Code of Civil Procedure which reads as follows: « The defendant may ask for the dismissal of the action if t here is lis pendens or res judicata . » [ 3 ] Defendant submits that the issues opposing him to Plaintiff before the Small Claims Division of the Court of Quebec were decided upon by the Superior Court in a judgment rendered on August 22, 2012 by Justice Lucie Fournier in the file bearing number 500- 17-035357-071. [ 4 ] The juridical term "res judicata" is defined as follows by

article 2848 of the Civil Code of Quebec : « The authority of a final judgment (res judicata) is an absolute presumption; it applies only to the object of the judgment when the demand is based on the same cause and is between the same parties acting in the same qualities and the thing applied for is the same.

However, a judgment deciding a class action has the authority of a final judgment in respect of the parties and the members of the group who have not excluded themselves therefrom. » [ 5 ] In the application filed before the Small Claims Division of the Court of Quebec, Plaintiff details her cause of action in the following manner: « 1) Defendant, as a liquidator appointed by the Court was responsible for the estate of Mrs.

Helen Ferguson Bowie. 2) Defendant did not meet the obligations provided for in the contract, and it cost the Plaintiff an amount of 8,950.00$ for his lack of expeditiously carrying out duties such as: • Delay in the treatment of fiscal matter at Revenue Canada • Delay to provide the annual financial statement • Extra costs for 2 lockers 4950$) • Extra costs for legal services because of poor communication between the parties (4000$) Fort details, see Exhibit P-1. 3) This situation led to unrealistic bills for the services provided by Defendant. 4) Plaintiff would like to add this information to her file: she has already paid 25 000$ in legal fees and cannot afford other extra expenses.

5) Plaintiff is willing to reduce her claim to 7000$. » [ 6 ] In the judgment rendered by the Superior Court on August 22, 2012, Justice Fournier wrote the following: « […] [23] Nonetheless, Mrs. Fraser submits that Me Talpis took too long to liquidate the Estate and to mandate an accountant. Because of these delays, she had to pay legal fees to her attorney.

She also argues that the storage costs are too high. [24] The Court finds that the delays incurred for the liquidation of the Estate as well as the costs related to these delays are mainly, if not exclusively, caused by the conflict between the heirs rather than by Me Talpis. [25] On the contrary, the proof clearly establishes that Me Talpis was diligent and that he repeatedly tried to resolve the dispute, without over-billing. […] [33] However, she did not deny that the work detailed on the invoices filed was completed.

She did not demonstrate that the fees claimed by Me Talpis are not reasonable, or that they are not owed to him. […] [36] The Court considers the fees claimed by Me Talpis to be reasonable and they shall be paid by the Estate. […] » [ 7 ] It appears therefore that the issues that Plaintiff wishes to submit for adjudication before the Small Claims Division of the Court of Quebec were submitted to the Superior Court and adjudicated upon in the judgment rendered by the said Court on August 22, 2012. [ 8 ] Consequently, Defendant's motion to dismiss Plaintiff's action is granted on the basis of "res judicata".

However, considering the particular circumstances of the present file, Plaintiff's action is dismissed without costs. WHEREFORE , THE COURT: GRANTS Defendant's motion to dismiss. DISMISSES Plaintiff's action, without costs. __________________________________ ARMANDO AZNAR, J.Q.C.